Gig-goers or bootleggers? Are phone recordings an irritant or potential copyright infringement?

May 2020


Go to any stadium gig and you’ll be met with a forest of arms holding up mobiles and blocking lines of sight, so people behind feel irritated,” says Katie McPhee, Head of Marketing at Eventbrite who commissioned a new report by ComRes – 1,031 adults who attended a live event in the past twelve months were interviewed.  The research found that:

• 70% found it irritating when others constantly take pictures or videos during live performances;
• 69% would support more than minimal action to minimise the disruption;
• 65% said using their phones to capture images could make them feel as though they are missing out on the live experience;
• Nearly half (49%) took photos and videos with a clear majority (62% each) among those aged 18-24 and 35-44;
• A large majority (81%) understood why an artist might not like videoing and photographing at the event;
• A majority (69%) would support measures to reduce filming and photographing with phones.

Artists, including Adele, Alicia Keys, Nick Cave, Kendrick Lamar and the late Prince have asked fans to refrain from using their phones during the performance. Rock bands White Stripes and Guns n’ Roses have famously banned mobile phones at their gigs. Of the surveyed industry professionals, four out of five had concerns about people recording pictures and videos during performances, but a majority (63%) had no measures in place to manage mobile phone use. 
The main concern for an artist whose live performance is captured on audio and video is ‘bootlegging’ which is unlawful. Other legal issues (under British law) which may arise, are acts which might constitute an infringement of: 

1. copyright in the musical composition and the lyrics;
2. copyright (the performer’s right) in the performance;
3. trademarks owned by the band collectively and individually; 
4. image rights (although this is not, as yet, a clear right in the UK);
5. merchandising rights;
6. contractual rights granted/restricted in the terms and conditions of entry to the venue reinforced by signage; 
7. licences granted by collective societies (such as PPL and PRS for Music) to the venue.

On the face of it, copyright law grants ownership of the concert audio and video to the audience member who made the recording, despite it having been recorded without the performers’ permission; But would a court follow that logic? And ownership gives the exclusive right to copy, communicate and distribute the recording to the public.  Thus, footage and clips posted on social media and YouTube can only be taken down where there is a legal basis for doing so.  For example, copyright exceptions may apply where permission is not required such as fair use where the recording is for criticism, review and news reporting.  On the other hand, the songwriter as owner of the copyright in the composition and lyrics can claim that the person recording on their phone failed to obtain a licence to do so (and that MAY be the band who have been filmed – but not necessarily so) and may be in breach of other rights, such as each performer’s right.
Currently, one of the legal mechanisms employed to take down unauthorised videos posted on the internet require the filing of a notice of infringement with the relevant service provider(s). In the USA, federal anti-bootlegging legislation exists and for copyright infringement the Digital Millennium Copyright Act (DMCA) provides a safe harbour for ISPs if they act promptly to block and/or remove infringing material on receipt of a notice by the rights holder.  In the EU, Article 14 of the E-Commerce Directive offers the same protection and the proposed Article 13 of the EU Copyright Directive will require service providers to implement content matching technology (similar to YouTube’s Content ID) in order to identify and prevent the availability of unlicensed works, acting expeditiously to remove them and prevent their future availability.  

However, prevention may be better than a legal remedy by implementing technical solutions to manage mobile phone use.  Jack White of the White Stripes and the Lumineers have employed the use of phone pouches at their concerts.  Attendees’ phones are put into pouches which are auto-locked when they enter the phone free zone within the venue, and auto-unlocked when they step outside.  Apple has also patented a process which prevents a phone from videoing through the use of an infra-red signal which is detected by the phone, which then shuts down its video features.

George Chin LLB(Hons), LLM (Entertainment Law)
Image: The Hamster Factory

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